Health Care Complaints Commission v Nkomo [2019] NSWCATOD 106

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Nkomo [2019] NSWCATOD 106 Hearing dates: 18 June 2019 Date of orders: 04 July 2019 Decision date: 04 July 2019 Jurisdiction: Occupational Division Before: J L O'Meally, Principal Member G Tolhurst, Senior Member J O'Baugh, Senior Member A Gray, General Member Decision: Application to review the order cancelling registration as a nurse, granted subject to conditions Catchwords: Registered nurse – Registration cancelled in earlier proceedings – Application for review of cancellation order – Application granted subject to conditions Legislation Cited: Health Practitioner Regulation National Law (NSW) 2009 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Thulani Nkomo (Applicant) Health Care Complaints Commission (Respondent) Representation: T Nkomo (Applicant in person) Health Care Complaints Commission File Number(s): 2014/20003; 2019/63045 Publication restriction: Pursuant to Schedule 5D Clause 4 of the Health Practitioner Regulation National Law (NSW) publication or disclosure of the name, address or any evidence or information which might lend to the identification of the name of the patient identified in these proceedings is prohibited.

REASONS FOR DECISION

INTRODUCTION 1. Following a hearing on 25 and 26 November 2013, the Tribunal, differently constituted, published its decision on 28 February 2014. In those proceedings (14/20003), the Health Care Complaints Commission (in these proceedings the respondent), sought orders against Thulani Nkomo (in these proceedings the applicant), who had been registered as a registered nurse by the Nurses and Midwives Board of New South Wales on 25 September 2009 and then was registered under the Health Practitioner Regulation National Law (NSW). The respondent alleged that the applicant was guilty of professional misconduct and unsatisfactory professional conduct as a result of inappropriate conduct and an inappropriate sexual relationship with a patient while he was working at Queanbeyan District Hospital. 2. The Tribunal found the applicant guilty of professional misconduct and unsatisfactory professional conduct and made the following orders: 1) The Tribunal reprimands Mr Nkomo in the strongest possible terms. 2) The Tribunal orders the cancellation of Mr Nkomo's registration. 3) The Tribunal orders that Mr Nkomo not be eligible to apply for review of that cancellation decision within 18 months from the date of this order. Any such application for review must be considered by the New South Wales Civil and Administrative Tribunal. 4) The Tribunal orders that Mr Nkomo is prohibited, for a period of 18 months, from providing the following health services on a public, private or volunteer basis: (a) Medical, hospital, nursing and midwifery services (including services as an assistant in nursing); and (b) Community health services 5)The Tribunal orders that Mr Nkomo pay the costs of the Health Care Complaints Commission. 6) The Tribunal makes a non‑publication order in relation to any information identifying the original complainant, referred to in these Reasons as Patient A. 1. The applicant now applies for review of the order cancelling his registration. 2. At the commencement of these proceedings the respondent took a neutral position. In the course of the hearing we were informed that it did not oppose the applicant's application, subject, however, to conditions. 3. The applicant gave evidence and was cross-examined. He freely admitted he had been guilty of professional misconduct and unsatisfactory professional conduct. He expressed remorse for his past conduct. 4. Notwithstanding some inconsistent responses he made in the investigation into the complaints which brought him before the Tribunal, we were impressed by his honesty and his acceptance of the findings and orders made in the earlier proceedings. We were impressed by the fact that he has enrolled in courses better to acquaint himself with the requirements of those who engage in the nursing profession. We were impressed by his insight into the consequences of his past misconduct and by his ready acceptance of the necessity to comply with the Code of Conduct for Nurses. We were impressed by the support he gives to his community in Darwin, where he now lives. We were impressed by his acceptance of the orders prepared by the respondent and of the conditions attached to those orders and by his willingness to consent to them. 5. We are confident that the likelihood of a repetition of past conduct is so remote as to be non-existent. We are confident that the applicant has learned from the experience which brought him before the Tribunal. 6. By consent we make the following orders: 1. The Application for reinstatement be granted, subject to the following conditions. 2. The Applicant is not to work in any mental health facility or dedicated mental health unit for a period of at least 12 months from the date he recommences employment as a registered nurse.